WALTER B. ASUQUO BONNIE & ANOR v. MRS BERTY FINE AGI & ORS
(2013)LCN/6460(CA)
In The Court of Appeal of Nigeria
On Friday, the 20th day of September, 2013
CA/C/56/2011
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
ONYEKACHI A. OTISI Justice of The Court of Appeal of Nigeria
Between
1. WALTER B. ASUQUO BONNIE
2. BARRIS B. ASUQUO BONNIE Appellant(s)
AND
1. MRS BERTY FINE AGI
2. MADAM GLORY B. ASUQUO BONNIE
3. MADAM AFFIONG B. ASUQUO BONNIE Respondent(s)
RATIO
WHETHER OR NOT THE BURDEN OF PROOF IN CIVIL MATTERS RESTS ON THE PARTY WHO ASSERTS A FACT
The burden of proof in civil matters is on the party who asserts a fact to prove same, for he who assets must prove. The standard of proof required is on a preponderance of evidence and balance of probabilities See the cases of Longe Vs FBN Plc (2006) 3 NWLR Pt 967 page 228, Daodu Vs. NNPC (1998) 2 NWLR Pt 538 page 355, Kala Vs. Potiskum (1998) 3 NWLR Pt 540 page 1, Alhaji Oraru & Sons Ltd Vs. Idris (1999) 6 NWLR Pt 606 page 330, Itauma Vs. Akpe-Ime (2000) 7 SC Pt 11 page 24.
“In civil matters, the onus of proving an allegation is on the Plaintiff and the onus does not shift until he has proved his claim on the preponderance of evidence and balance of probabilities. Parties in civil cases must prove their cases on preponderance of evidence and on balance of probabilities. It is after the burden of proving the case has been discharged in accordance with the above principle of law that the burden shifts and continues to shift. But where a party fails to discharge this burden then the opponent needs not prove any fact and the party alleging cannot rely on the opponent’s case. A party must prove its case on credible evidence of its witnesses and is not at liberty in law to make a case or rely. On the weakness of its opposite party in order to succeed” Iman Vs. Sheriif (2005) 4 NWLR Pt 914 page 80, Elias Vs. Omo-Bare (1982) 2 SC page 25, Agbi Vs. Ogbeh (2006) 11 NWLR Pt 990 page 65. PER NDUKWE-ANYANWU, J.C.A.
UZO I. NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Cross River State sitting in Calabar delivered on 17th August, 2010. The parties to this appeal are siblings and children of Late Chief Joseph Asuquo Bonnie of Ekpo Abasi who died on 2nd September, 1996. After his funeral, his will was read making the three Respondents the executrices of his will. The Appellants were aggrieved and took out a writ in the High Court and in their amended statement of claim filed on 29th September, 2006 claimed as follows:
a. A declaration that the Defendants are not competent to solely administer the estate of Late Chief Joseph Asuquo Bonnie Ekpo Abasi, to the exclusion of the Plaintiffs.
b. A declaration that the Will purportedly made ,by the Late Chief Joseph Asuquo Bonnie Ekpo Abasi dated 2nd of January, 1990 was a forgery the same having not been made by Late Chief Joseph Asuquo Bonnie Ekpo Abasi.
c. An order revoking the Letters of Probate No PR/1/97 dated 23rd day of January, 1997 issued to the Defendants by the Chief Registrar (Probate) in respect of the estate of Late Chief Joseph Asuquo Bonnie Ekpo Abasi who died intestate on the 2nd of September, 1996.
d. An order restraining the Defendants from parading themselves or acting as executors of the estate of the Late Chief Joseph Asuquo Bonnie Ekpo Abasi.
e. An order directing that the Latter of Administration in respect of the estate of Chief Joseph Asuquo Bonnie Ekpo Abasi who died intestate on the 2nd of September 1996 is issued jointly to the Plaintiffs, and the Defendants.
f. An order that Defendants account for all moneys received by them on account of the estate of Late chief Joseph Asuquo Bonnie Ekpo Abasi, especially with respect to No 33 (formally No 17) Odukpani Road, and 282(55) Odukpani Road Calabar.
g. An order that the Defendants make restitution of any money or monies of the estate of Late Chief Joseph Bonnie Ekpo Abasi which they might have misappropriated.’
The Respondents as Defendants filed their amended statement of defence on 10th March, 2006. The case proceeded to trial with the two appellants testifying as PW1 and PW2. The respondent called three witnesses with one of them testifying as DW1. At the end of a full trial, the trial Judge delivered his considered judgment dismissing all the claims of the Plaintiffs/Appellants. The appellants were again aggrieved and filed their notice and three grounds of appeal on 14th May, 2010. By leave granted by the court, the Appellants amended their notice to include two additional grounds of appeal on 15th May, 2011.
From the five grounds of appeal, the Appellants articulated two issues for determination as follows :
Issues for Determination
1. Whether the learned trial Judge was right to hold as he did that the disputed Will was signed by late chief Joseph Asuquo Bonnie.
2. Whether the respondents proved that late Chief Joseph Asuquo Bonnie has a sound disposing mind at the time he allegedly made the disputed Will
The Appellant’s brief which was filed on 21st September, 2011 was deemed properly filed and served on 19th April, 2012.
The Respondents filed their joint Respondents brief on 17th September, 2012 but deemed properly filed and served on 11th February, 2013. In it, the respondent’s counsel Chief F. O. Onyebueke, adopted the two issues articulated by the Appellants’ counsel, Essien H. Andrew, Esq.
ISSUE 1
This issue was distilled from grounds two and three of the amended notice and grounds of appeal. Learned Counsel for the Appellants submitted that the Late Chief Joseph Asuquo Bonnie did not sign the disputed Will, exhibit E, at page 157 of the Record of Appeal but referred to as Exhibit 5 in the judgment. The learned trial Judge resolved this issue in the following words.
“The claimants say the signature on Exhibit 5 is not that of their late father. They have tendered 6 documents as Exhibit L carrying the signature signed by their late father. Acting under section 108 of the Evidence Act I have compared those six signatures with the one on the Will, Exhibits 5. I find all the signatures similar in that the usual signature of the late chief was “A. Bonnie” joined together”.
Counsel stated that the trial Judge came to this conclusion, by comparing the deceased signatures in Exhibit E and L. Counsel conceeded that S.108(1) of the Evidence Act empowered the trial Judge to do such comparison in court and inform the parties of his observations. This is to enable the parties address the court if need be. Counsel referred the court to Obuobipi Vs. Obuforibo (2010) All FWLR (Pt 546) 543 at 566 para F-G; Ndoma-Ebge Vs. African Continental Bank Plc (2005) All FWLR (Pt 2S3) 152 at 173-174 para G-D; Akalonu Vs. Omokaro (2003) FWLR (Pt 175) 493 at 502-503 para H-C.
The parties were not afforded this opportunity. In compounding this error, the learned trial Judge offered explanations in his judgment on the very obvious dissimilarities in the deceased signatures, thereby making a case for the parties. Counsel urged the court to overrule this conclusion.
Counsel submitted further that at the time this purported Will was executed, their deceased father was no longer able to sign any document and was only able to thumbprint. This fact was supported by Exhibit F, a Power of Attorney which the deceased thumb printed in 1989, authorizing the 1st Appellant and the 2nd Respondent to jointly manage his estate. Counsel argued that because of the damaging impact of Exhibit F, the 2nd Respondent denied the authenticity of Exhibit F. 2nd Respondent in evidence said:
“1st plaintiff brought a document (i.e. Power of Attorney Exhibit F) to me asking me to sign to enable us collecting (sic) rents on our father’s property. I refused to sign. He pressurized me until he finally wrote my name on the document with his own. He placed his thumb on a kettle and printed on the document. I never signed the document but we used the document to collect rents from our father’s tenants’ (page 185 of the records)
Counsel finally submitted that the 2nd Respondent claimed Exhibit F was a forgery yet used it to manage their father’s property. Their deceased father thumb printed on Exhibit F in 1989 and, therefore, couldn’t have signed the purported Will in 1990.
Counsel, therefore, urged the court to overrule the decision of the trial court and resolve this issue in favour of the Appellant.
The learned counsel for the Respondents in reply submitted that S.108(1) of the Evidence Act empowered the trial Judge to make the comparison of the deceased signature. The trial Judge however did not only reply on the comparison but also on the evidence of DW3, a witness to the Will, Exhibit E. This witness testified to the fact of signing the Will thus:
“He said on the day he witnessed the testator sign his signature on the Will”.
“The testator signed in our presence and we the witnesses signed in his presence and presence of both of us”.
This piece of evidence was uncontroverted or impeached during cross examination. The trial court, therefore, relied on this piece of evidence. See Ndoma-Egbe Vs. ACB (2005) 7 SC Pt 111 page 27. Where the Supreme Court held as follows:
“It was held that for judicial examination, it was prescribed there be some examination in Court and same read to parties for their reaction, however, there was further evidence by someone familiar with the signature on the cheque was not that of the Plaintiff. The Supreme Court did not disturb the findings of the Court on this evidence that has been examine in open court.”
Having proved that the signature of the deceased was not forged the burden then shifts to the Appellant to prove that it was forged. See Ndoma-Egba Vs. ACB (supra) where the court continued to hold.
“The findings made by the trial Court upon a comparison of the Plaintiffs signatures on Exhibit 1, 2, 3 and 4 must therefore be discountenance. But that is not the end of the matter. As I observed earlier, the Plaintiff denied that he signed Exhibits 2, 3, and 4. PW2 who was familiar with the signature of the plaintiffs denied those signatures. The only defence witness gave evidence on the point. There were thus two versions of the evidence the version of the plaintiffs and that of the Defendants. This is a civil case and the trial court had a duty of which version to accept and he accepted that of the plaintiff and it was not open to the Court below to reverse such finding of fact”
Counsel urged the court to apply the same principles and accept the evidence of the respondent and the findings of the trial court. Counsel submitted that the appellants’ counsel urged the court to hold that as at 1990, when the purported Will was signed, the deceased could only thumbprint. Learned counsel to the Respondent re-iterated that the trial Judge considered this piece of evidence and rightly concluded as follows:
He said on the day he witnessed the testator sign his signature on the Will the testator was healthy. The witness said he could say whether a person is healthy if the person talks’ walks and look healthy to him. That on the day he witnessed the Will the testator was not bedridden that being the only evidence I have regarding the State on the health of the testator of Exhibit 5 when it was made I accept it and find and hold that the testator was fit to make Exhibit 5, when he made it”
Counsel urged the court to also affirm these findings. Counsel submitted that contrary to the 1st Appellant, the Power of Attorney Exhibit F, allegedly thumb printed by the deceased was a forgery. This is what the 1st Respondent testified in court.
“1st Plaintiff brought a document to me asking me to sign to enable us collecting rent from our father’s property. I refused to sign. He pressurized me until finally wrote my name on the document with his own hand. He placed his thump on a kettle and printed on the document.”
This piece of evidence was uncontroverted nor upturned during cross examination and, therefore, accepted by the trial court.
Counsel, therefore, urged the court to hold that Exhibit F was forged and resolve this issue in favour of the Respondents.
The question to answer on this issue is whether the disputed Will, Exhibit E, was signed by their deceased father? The burden of proof in civil matters is on the party who asserts a fact to prove same, for he who assets must prove. The standard of proof required is on a preponderance of evidence and balance of probabilities See the cases of Longe Vs FBN Plc (2006) 3 NWLR Pt 967 page 228, Daodu Vs. NNPC (1998) 2 NWLR Pt 538 page 355, Kala Vs. Potiskum (1998) 3 NWLR Pt 540 page 1, Alhaji Oraru & Sons Ltd Vs. Idris (1999) 6 NWLR Pt 606 page 330, Itauma Vs. Akpe-Ime (2000) 7 SC Pt 11 page 24.
“In civil matters, the onus of proving an allegation is on the Plaintiff and the onus does not shift until he has proved his claim on the preponderance of evidence and balance of probabilities. Parties in civil cases must prove their cases on preponderance of evidence and on balance of probabilities. It is after the burden of proving the case has been discharged in accordance with the above principle of law that the burden shifts and continues to shift. But where a party fails to discharge this burden then the opponent needs not prove any fact and the party alleging cannot rely on the opponent’s case. A party must prove its case on credible evidence of its witnesses and is not at liberty in law to make a case or rely. On the weakness of its opposite party in order to succeed” Iman Vs. Sheriif (2005) 4 NWLR Pt 914 page 80, Elias Vs. Omo-Bare (1982) 2 SC page 25, Agbi Vs. Ogbeh (2006) 11 NWLR Pt 990 page 65.In this appeal, the Appellants were the plaintiffs in the court below. The appellants asserted that the Will, Exhibit E, purported to be signed by their deceased father was a forgery. To prove this assertion, the Appellants stated that in 1989, their father executed a Power of attorney which he thumb printed on and, therefore, could not have signed the purported Will in 1990. The Respondent debunked this assertion. The 2nd Respondent gave in evidence that the Power of Attorney was forged by the 1st Appellant. 2nd Respondent gave in graphic details how the said Power of Attorney was executed. She stated thus:
“1st Plaintiff brought a document to me asking me to sign to enable us collecting rent from our father’s property. I refused to sign. He pressurized me until finally wrote my name on the document with his own hand. He placed his thump on a kettle and printed on the document.”
The appellants did not debunk this assertion in their cross examination. Therefore, this piece of evidence was accepted by the trial Judge as uncontroverted and he subsequently relied on it in his judgment.
The Appellants did not prove this assertion that their deceased father did not sign the purported Will. The Respondents on their part called DW3 who testified under oath that, their deceased father signed the Will in his presence. DW3 thereafter signed as witness together with another person. DW3 is a legal practitioner and understands what it means to sign as a witness. He also claimed that there was nothing wrong with the deceased as of the time this Will was executed. The handwriting of a party may be proved by some person who has knowledge of it from having seen him write only once State Vs. Isiaki Asbola (1931) 3 OYSHC page 510. The burden of proving this assertion is on the Appellant.
On the balance of probability, the evidence of the Respondents is more credible. To still authenticate their assertion, they led evidence to show that their father did not favour the Appellants as they were maltreating him. Evidence was led to the fact that their father caused a criminal charge to be instituted against the 1st appellant for beating their deceased father. This was indeed reported in the newspapers. The 1st appellant had no answer to this assertion. All these evidence was in proof of the assertion that the Will was signed by their deceased father and, therefore, authentic.
“In civil cases party is only entitled to judgment if a trial court believes and accepts his evidence and if such evidence supports his case” Bello vs. Aruwa (1999) 8 NWLR Pt 615 page 454.
The trial Judge believed and accepted the evidence of the Respondents and gave them judgment. I also agree that the Appellants failed to prove their assertion that their father’s Will was a forgery.
This issue is, therefore, resolved against the Appellants’
ISSUE 2
Again, the learned counsel to the Appellants submitted that as at January, 1990 when the deceased purportedly made the disputed Will he was not of sound mind. In this regard, counsel stated that the law is that the party propounded that the Will was not a forgery has the primary burden of proving that the deceased had a sound testamentary capacity at the time he made the Will. The burden will then shift only after the party propounding the Will has established that the testator had a sound disposing mind’ See Ize-Iyamu Vs. Alonge (2007) All FWLR Pt 371 page 1570, Amadi vs. Amadi (2007) All FWLR Pt 368 Page 1142.
Counsel contended that the Respondents made no effort to establish the testator’s testamentary capacity. The Respondents only tendered a Medical Report Exhibit T stating the cause of death but led no evidence on the deceased state of mind in January, 1990 when the purported Will was executed. Counsel argued that the appellants tendered Exhibit B, a letter written by Bar. E. E. Ekanem on 16th August, 1990 writing on the state of their father’s mental capacity thus:
“Chief Joseph Asuquo Bonnie has never commissioned me to prepare his Will nor has he ever discussed anything of the sort with me… Your father is old and senile and his senses are morbid to the extent that he cannot engage in any sensible and coherent discussion now. I am informed that even when your father was with his full thinking faculty you never had any meaningful conversation with him”
Counsel further argued that E. E. Ekanem who purportedly prepared the Will in Janudry, 1990 could not have written this letter in August 1990. Also the Appellant and the Respondents jointly wrote Exhibit Q that:
“Our father is now above 94 years old has been senile for years now. He has been under medical treatment with two drugs that help restore memory (1) Encophahol and (2) Complamin Retard. To show that he did not know that he was doing he did not come to the council meeting with a lawyer or any of his children.”
This letter, Exhibit Q, was written in august 1991 and alleged that their father had been senile for Years.
On these documentary evidence, the trial Judge held as follows:
“The Will Exhibit 5 was written on 2nd January 1990 before Exhibit B and Q. There is therefore no evidence placed before me to show that the testator of Exhibits 5 was senile as at the date Exhibit 5 was made. On the other hand there is the evidence of PW3, (sic – DW3) a legal practitioner, who witnessed the Will. He said on the day he witnessed the testator sign his signature on the Will the testator was healthy. The witness said he could say whether a person is healthy if the persons talks, walks and looks healthy to him. That on the day he witnessed the will the testator was not bedridden. That being the only evidence I have regarding the state of health of the testator of Exhibit 5 when it was made I accept it and find and hold that the testator was fit to make Exhibit 5 when he made it”.
Counsel urged the court to hold that the trial Judge was clearly in error with that finding. Finally counsel argued that the opinion of DW3, a lawyer on medical issues, was not acceptable. The trial court should not have relied on that opinion to accept that the deceased testator was healthy and of sound mind.
Counsel, therefore, urged the court to resolve this issue in favour of the Appellant.
The learned Counsel for the Respondent submitted that the Respondent proceed that the testator had the mental capacity at the time he made the Will. See Oshinowo vs. Oshinowo (2005) All FWLR Pt.281 page 1698. The court held:
“Where it was held that the burden of proof of the genuineness and authenticity of a Will lies on the person propounding the validity thereof after which burden shifts on the person disputing the geniuses”. Egbuziem Vs. Egbuziem (2005) 4 NWLR Pt.916 page 448.
In prove of this Will, the Respondents called an eye witness who signed as witness to the Will DW3, Director of Public Prosecution Cross River State testified in the following manner.
(a) That I knew Chief Asuquo Bonnie when I witnessed his Will in the presence of another witness.
(b) That the testator signed in our presence and we the witnesses signed in his presence.
(c) That the time of witnessing the Will, the testator was of sound mind and no physical deformity. The Will was made in 1990.
Under cross examination, the witness continued thus:
“I can say whether a person is healthy if the person can talk, walk and looks healthy to me. He was not bedridden when I signed the Will.”
Counsel contended that DW3 was the only eye witness to the Will and his evidence was credible. Also there was a medical report as to the cause of death being malaria. DW1 also testified that her father was of sound health in 1990.
The respondent also tendered Exhibit S which was a newspaper publication showing the sour relationship between the 1st Appellant and their father. Their father caused a criminal charge to be instituted against the 1st Appellant for beating him up.
Their deceased father excluded the Appellants from his Will because of their strained relationship. Counsel argued that the Appellants are complaining about the validity of the Will because they were excluded from benefiting from his estate. The exclusion of the Appellants was clearly stated in the Will and reasons given which are similar to the reasons given in the 1980 Will which was lodged in the probate and later withdrawn.
Counsel urged the court to hold that as of the time this Will was made, the testator was of sound mind. This is so because; the testator wrote correctly the number of his children including his grandchildren from his deceased daughter. He also gave reasons for the exclusion of the Appellants.
Counsel finally urged the court to resolve this issue in favour of the Respondents.
Was the testator, Chief Joseph Asuquo Bonnie of sound mind as of the time he made his Will in 1990?
In proof of this, the Respondent called an eyewitness and a witness to the Will, DW3, the then Director of Public Prosecution, Cross River State. He testified that the deceased was well, healthy and talked sensibly. He also said that at the time, the deceased was not bedridden. He opined that he would know someone who was healthy when he “talks, walks and looks healthy”. DW3 also said he signed the document (Will) in the deceased house and that he was a friend to Ekanem ie Bar. E. E. Ekanem.
The Respondents also tendered a medical certificate stating that the cause of death was malaria and not of mental incapacity. It is on record, that the old Will withdrawn and replaced were basically the same thing. The Respondents also showed the state of mind of the deceased by tendering in court the Newspaper publication in the chronicle stating that the deceased had caused the 1st Appellant to be charged to court. This, the 1st Appellant did not deny.
Exhibit S showed that the deceased and the Appellants had a very strained relationship which culminated in their exclusion from his Will.
The Appellants had argued that Exhibits B & Q clearly showed that their father was not mentally capable of making a Will. Exhibit B, credited to Barr. E. E. Ekanem, seems to be at cross purposes with his letter dated 8th January, 1993 where he applied to withdraw a Will executed 2nd June, 1980 and substituted with a new one. The letter is repeated verbatim for ease of reference.
EYO E. EKANEM LLB.B. (LONDON)
BARRISTER-AT-LAW & SOLICITOR OF THE SUPREME COURT OF NIGERIA
No. 6 Idang Street,
Calabar.
8th January, 1993.
The Probate Registrar,
High Court of Justice,
Calabar.
Dear Sir,
WITHDRAWAL OF WILL AND SUBSTITUTION OF ANOTHER IN RESPECT OF CHIEF JOSEPH ASUQUO BONNIE EKPO ABASI
I am solicitor for Chief Joseph Asuquo Bonnie Ekpo Abasi of No 55 Odukpani Road, Ikot Effiong Nta, Calabar and I am acting on his instruction. He made a Will in 1980 which was lodged in the Probate Registry on the 2nd day of June 1980. He has made a new Will which supersedes the earlier one. He now wishes to withdraw the first Will and deposit the new one. He instructs me to act accordingly. I should be grateful if you would convey approval in these terms. The number of the Will is 131.
Yours faithfully,
SGD
CHIEF EYO E. EKANEM SOLICITOR
FOR: THE ABOVE NAMED TESTATOR
Both Exhibit B and this letter should be read together. Like I have stated earlier on, the burden of proof in civil cases is on the preponderance of evidence and balance of probabilities. The onus of proving an allegation is on the plaintiff and the onus does not shift until he has proved his claim. Kala Vs. Potiskum (supra), Braimah vs. Abasi (supra), Itauma vs. Akpe-Ime (supra).
The Appellants did not lead any credible evidence to show that their father’s Will was forged. The appellants also could not show that their father was of unsound mind at the time he made his Will. The surrounding circumstances show that their deceased father intended to exclude them and indeed excluded them in his will. The Appellants neither denied the circumstances of their strained relationship with their father nor denied having forged the power of Attorney. He who comes to equity must come with clean hands. The 1st Appellant cannot forge his father’s thumbprint in a purported Power of Attorney of their deceased father and expect the court to believe his story. The Appellants have not been able to show that their father’s Will was forged by the Respondents. The two issues articulated by the Appellants have been resolved against them. The appeal is unmeritorious and, therefore, dismissed. I hereby affirm the judgment of the court below. Cost of N50,000.00 to the Respondents against the appellants.
MOHAMMED LAWAL GARBA, J.C.A.: I agree.
ONYEKACHI A. OTISI, J.C.A.: I had the privilege of reading, in draft, the Judgment just delivered by my learned Brother, Ndukwe-Anyanwu JCA, I completely agree with the reasoning and the conclusions reached.
The Appellants, who had the burden of proving their assertion that their father’s Will was forged failed to do so.
This appeal is therefore without merit; and, is hereby dismissed. The Judgment of the lower court is hereby affirmed.
I abide by the Orders made in the lead Judgment, including the Order as to costs.
Appearances
E. H. Andrew Esq.For Appellant
AND
F. O. Onyebueke with G. Ntui Ogra (Mrs)For Respondent
